Welcome

Welcome to the Fair Work Commission’s Quarterly practitioner update.

This newsletter is designed to help workplace relations practitioners stay up to date with key decisions of the Commission, and to provide information about new or updated Commission forms, processes, resources and events.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.

The following sections provide summaries of a number of key Commission decisions made under the Fair Work Act 2009 (Cth) (the Fair Work Act) as well as other relevant information. In this edition of the Quarterly practitioner update, we have featured Commission decisions issued between 1 January 2019 and 31 March 2019.

Please note that summaries of decisions contained in this publication are not a substitute for the published reasons for decision.

Dismissal matters

Unfair dismissal matters

Thomas v MWS P/L

Background

In this application for unfair dismissal the applicant was dismissed for allegations of serious misconduct, namely theft. It was alleged that the stolen property was three bottles of alcohol which the applicant had retrieved from a large ‘putrid’ esky on the respondent’s premises, that had been discarded three months earlier following a 2017 Melbourne Cup function. The applicant and a colleague had been instructed to dispose of the esky’s contents however the applicant discovered the three bottles of alcohol and took them home with him.

The respondent was a small business and claimed that the dismissal was in line with the Small Business Fair Dismissal Code.

Outcome

The Commission considered Pinawin, and found that the Code was not complied with as the respondent did not have a genuinely held belief that the conduct was sufficiently serious, and if held the belief was not based on reasonable grounds. The Commission considered that the goods had been abandoned and found no evidence of a police report regarding the ‘theft’.

The Commission found no valid reason for the dismissal as it was reasonable for the applicant to believe the alcohol had been discarded. The respondent’s show cause letter demanded the applicant return all company property and equipment and made reference to the applicant’s refusal to sign a revised employment contract. The Commission found that the respondent had already decided to dismiss the applicant and was going ‘through the motions’ of providing the applicant an opportunity to respond.

The Commission held that the dismissal disclosed a manifest denial of procedural fairness, finding the dismissal was significantly, substantively and procedurally unfair. The Commission ordered reinstatement, continuity of service and back pay for lost remuneration as the remedy.

Background

The applicant who lodged this unfair dismissal application was employed as a Theatre Technician. He was dismissed for yelling at and harassing a colleague, and for not following instructions from a surgeon which caused theatre to be delayed by one hour. The respondent also relied on a third reason for the dismissal at the hearing, which was that the applicant was dishonest. The applicant had travelled overseas while on personal leave with a medical certificate. The applicant also had a history of poor performance and conduct. The respondent had issued three warnings to the applicant and counselled him on his conduct on 15 occasions in two years.

The applicant was notified of the first two reasons for dismissal before the termination took effect, however he was not notified of the third reason (dishonesty) until the hearing. A fourth reason (relating to his conduct and work performance) was notified in the letter of dismissal after termination. The applicant was not given an opportunity to respond to the dishonesty reasons prior to the dismissal.

Outcome

The Commission found that the applicant’s conduct towards his colleague and his failure to follow the surgeon’s instructions, together with his dishonesty amounted to serious and unacceptable behaviour. The Commission found that the formal warnings concerned the applicant’s unacceptable conduct. The Commission found that there was a valid reason for dismissal even with the procedural defects of the applicant not having been notified of all of the reasons for his dismissal. The Commission took into account the applicant’s disciplinary history and found that the dismissal was not unfair. The application was dismissed.

Hatwell v Esso Australia P/L

Background

At first instance in this matter, the Commission dismissed the applicant’s unfair dismissal application [[2018] FWC 2398]. The applicant had been dismissed for conduct ‘designed to ignore, exclude and isolate employees of contractors on site’, and that he had used ‘offensive and intimidating language towards and about employees of contractors’. The Commission found that the applicant’s conduct contravened the respondent’s harassment policy.

The applicant appealed this decision and a Full Bench of the Commission upheld the appeal [[2018] FWCFB 6092]. The Full Bench decided that the applicant’s dismissal was harsh, and therefore unfair, concluding that the applicant’s conduct warranted a disciplinary response which fell short of dismissal. The Full Bench remitted the question of whether an unfair dismissal remedy should be granted, and if so, the nature of that remedy. The applicant sought reinstatement however the respondent submitted that reinstatement was inappropriate because it had lost all trust and confidence in him.

The Commission noted that when dealing with the question of remedy on remittal, it is appropriate that the Commission has due regard to the decision of the Full Bench. In this case the Full Bench had stated that the applicant’s conduct warranted a disciplinary response which fell short of dismissal. The Full Bench also upheld the conclusion at first instance that the conduct constituted a valid reason for dismissal, and it did not disturb the finding that the conduct of the applicant amounted to serious misconduct.

Outcome

The Commission considered the applicant’s absence of contrition and recognition and also considered the question of the respondent’s contention that the applicant was dishonest in the course of its investigation. During the hearing of the applicant’s unfair dismissal application the respondent submitted it had a further valid reason for dismissing the applicant constituted by his dishonesty. Given the Commission’s conclusions at first instance it was not necessary to address that contention.

The Commission considered Smith, Perkins and Nguyen and found that the respondent’s opinion that the applicant did not display the honesty and candour required by its Ethics Policy was rationally and soundly based. The Commission found that reinstatement was not appropriate due to a loss of trust and confidence and considered that an order for compensation was appropriate. The respondent submitted that the measure of compensation should be two weeks’ pay, on the basis that it would have dismissed the applicant for dishonesty in any event, following a short investigation. The applicant contended he would have remained employed by respondent for the remainder of his career and says this is the appropriate marker for the calculation of compensation, resulting in a compensation order, once the statutory cap is applied, of six months’ pay.

The Commission rejected the respondent’s contention that it would have terminated the applicant’s employment for dishonesty within two weeks. The Commission held that the contention proceeded on a false assumption as to the likely state of affairs that would have obtained in the event that the applicant had not been dismissed. The Commission considered the applicant’s submission excessive, however it also considered that the applicant would have remained employed for a significant period. The Commission found it was reasonable to estimate that the applicant would have continued in his employment at the company for at least two years. The compensation amount calculated exceeded the statutory compensation cap. The Commission determined it was appropriate to order six months’ gross pay inclusive of superannuation and ordered compensation in the amount of $68,443.07 with deduction of any taxation required by law.

Pirozzi v Sydney Trains

Background

In this case the applicant was employed as a fitter/machinist for Sydney Trains and was dismissed for painting his car during work hours, using the employer’s equipment and resources. The applicant was at work at least an hour before his rostered start time of 6.30pm, and commenced activities that involved the spray-painting of his personal car, a Nissan Pulsar. The work involved in preparing and spray-painting his car would take more than two hours. The applicant claimed he genuinely believed he was to commence work at 8.30pm rather than his rostered time of 6.30pm. The applicant also claimed that he used his own paint and spray equipment, and only used the employer’s air hose and compressor. The applicant submitted that this was permitted in respect to the practice of ‘foreign orders’, where staff use their employer’s resources for personal gain.

Outcome

The Commission found that the ‘foreign order’ was performed without prior approval of the employer and was knowingly undertaken in paid time. The performance of the ‘foreign order’ as well as the applicant’s dishonesty during the subsequent investigation constituted serious misconduct. The Commission found that the respondent had a valid reason for dismissal, and was satisfied the dismissal was not harsh, unjust or unreasonable. The application was dismissed.

Background

The decision at first instance dismissed the appellant’s jurisdictional objections against the employee’s unfair dismissal application. The appellant contended that it was a small business employer and that the ‘minimum employment period’ was therefore one year, which the employee had clearly not served. Secondly, the appellant said that in any event, the employee’s service as a casual did not count towards her period of employment, because she was not engaged on a regular and systematic basis and did not have a reasonable expectation of continuing employment.

Outcome

The Full Bench found that the Commission erred in concluding that the appellant was not small business employer and found that the Commission erred in assuming that s.23 of the Fair Work Act concerned whether a casual employee had reasonable expectation of continuing employment.

The Full Bench found insufficient evidence to conclude that casual employees were employed on regular and systematic basis. The Full Bench also found that the Commission was correct in determining that the employee’s casual service counted towards her employment period. The appeal was upheld in parts. The decision at first instance was quashed, insofar as it determined that the appellant was not a small business employer and that the minimum employment period was six months. The matter was remitted to Wilson C for redetermination.

Thompson v Zadlea P/L t/a Atlas Steel

Background

This application for unfair dismissal was lodged by a Canadian national who had been employed as a welder/metal fabricator. The applicant originally came to Australia on a temporary working holiday visa, which expired in April 2018. He then entered into an employment contract with Atlas Steel whereby it agreed to be his approved nominee for a Temporary Skill Shortage Visa.

On 21 June 2018 the applicant had an altercation with another employee. The following day the applicant left the workplace after encountering the same employee. The applicant went to his doctor who provided him with a certificate of capacity regarding a work-related injury/condition, which indicated that it was necessary for him to be off work until 5 July 2018. During this period the respondent concluded that the applicant had abandoned his employment, given his absence from work for a continuous period of more than three days, and consequently decided to withdraw its visa nomination.

Outcome

The Commission considered the 4 yearly review of modern awards Full Bench decision for the Abandonment of Employment common issue. The Commission was not satisfied that the applicant abandoned his employment on the basis he ceased to attend his place of employment without a proper excuse or explanation. The Commission was satisfied that by withdrawing its visa nomination the respondent effectively acted to terminate applicant’s employment, and that its actions in doing so were harsh and unreasonable. The respondent made no attempt to contact the applicant after he left the workplace on 22 June 2018. The Commission found that the applicant was unfairly dismissed and ordered $7,022.40 compensation, less deduction of any tax as required by law.

Deeney and Others v Patrick Projects P/L

Background

In this matter four applicants contend that their terminations, as full-time permanent employees, were not genuine redundancies and as a result they believed they had been unfairly dismissed. These applications were subject to a number of interlocutory applications. The employment of the applicants was governed by the Patrick Projects P/L AMC Cargo Handling Agreement 2012-2015, a Memorandum of Understanding Deed between the respondent and the Maritime Union of Australia (MUA), and the Stevedoring Industry Award 2010.

The applicants were initially employed as casual employees in July 2012. They were all appointed to full-time permanent positions in August 2012. On 19 February 2014 the respondent wrote to 43 employees, including each of the applicants, notifying them of their redundancy and advising that their employment would come to an end on 20 March 2014. The respondent offered each applicant employment as a casual employee. This offer of casual employment was not taken up by any of the applicants. The respondent also provided the applicants with a list of available positions at Asciano, an associated entity. None of the applicants expressed any interest in the available positions.

Outcome

The Commission was satisfied that the respondent no longer required the applicants’ jobs to be performed by anyone due to changes in the operational requirements of the respondent’s enterprise following a direction from its client. The Commission found that the fact that casual opportunities remained did not detract from the need for the respondent to reduce the full-time permanent workforce. The Commission was satisfied that the consultation requirements set out in s.389(1)(b) of the Fair Work Act had been met, and that it was not reasonable in all the circumstances for the applicants to be redeployed within the respondent’s enterprise or an associated entity. The Commission was satisfied that the applicants’ redundancies were genuine redundancies. The Commission held that on this basis the applications cannot succeed and must be dismissed.

On arriving at the conclusion that the applicants’ dismissals were the result of genuine redundancies as per s.396(d), the Commission does not need to determine whether the dismissal was harsh, unjust or unreasonable. However for completeness the Commission held that the circumstances of the redundancies did not support a conclusion that the applicants’ dismissals were harsh, unjust or unreasonable. The four applications were dismissed.

Bargaining & agreement making matters

Enterprise agreement matters

Woolworths Supermarkets Agreement 2018

Background

This matter related to an application by Woolworths Group Limited T/A Woolworths for approval of the Woolworths Supermarkets Agreement 2018. The Shop, Distributive and Allied Employees Association (SDA), the Australasian Meat Industry Employees Union (AMIEU), and The Australian Workers’ Union (AWU), collectively ‘the Unions’ each lodged statutory declarations in support of the Agreement’s approval.

The Retail and Fast Food Workers Union Incorporated (RAFFWU) were also a bargaining representative opposed the approval of the Agreement. RAFFWU raised four substantive issues in opposition of the Agreement being approved:

RAFFWU contended that Woolworths distributed invalid NERRs, contrary to s.174(1A) of the Fair Work Act and that Woolworths failed to take all reasonable steps required by s.173(1) to give the 2018 NERR to the relevant employees.

RAFFWU argued that the Agreement could not be approved by the Commission as it contained an unlawful term as described by s.194 of the Fair Work Act, namely that the group of employees covered by the Agreement were not fairly chosen as the Agreement covered some but not all employees of particular classes

A number of impugned terms of the Agreement were unlawful terms

Woolworths misrepresented the benefit of the Agreement in relation to laundering allowances, sign-on payments and gift cards.

Outcome

In regards to the first substantive issue, RAFFWU contended that Woolworths distributed invalid NERRs in 2014 and 2015 as the documents contained the Woolworths logo and were therefore contrary to s.174(1A) of the Fair Work Act. RAFFWU further submitted that there was no new notification time in 2018 to support the 2018 NERR as Woolworths did not announce to any employee that it had initiated bargaining. The Commission noted that the mere presence of a company logo on a document containing a NERR does not invalidate the NERR. The Commission found that the inclusion of the Woolworths’ logo in both the 2014 and 2015 NERRs to be procedural and technical errors with Woolworths employees not likely to have been disadvantaged. The Commission went on to find on the evidence, that Woolworths did inform the Unions and RAFFWU between 18 January and 2 February 2018 that it was ceasing bargaining due to concerns with the validity of the 2014 and 2015 NERRs. As a consequence, the 2014 and 2015 NERRs ceased to operate and had no application. The Commission also found that Woolworths had notified the unions and RAFFWU of an intention to recommence bargaining on 2 February 2018.

The second substantive issue raised by RAFFWU advanced the claim that the Agreement could not be approved by the Commission as it contained an unlawful term as described by s.194. The Commission found that the bargaining representatives for the proposed agreement had bargained on the basis of the coverage contained in the Agreement, and though RAFFWU might have been seeking a broader coverage, there was no evidence to suggest it considered the group expressed in the coverage to be anything other than fairly chosen. The Commission noted that the coverage was an issue agitated by one bargaining representative and does not on its own mean that a group of employees that was not fairly chosen. The Commission considered that the group covered by the Agreement was not geographically, operationally or organisationally distinct; the group of employees covered by the Agreement was fairly chosen.

Thirdly, RAFFWU claimed the Commission could not be satisfied that the Agreement did not contain any unlawful terms as required by s.186(4) as the Agreement contained terms that were said to be discriminatory terms. RAFFWU claimed that employees who were not full-time would be paid a bonus which would be disproportionately lower than what would be paid to full-time employees. RAFFWU submitted that the critical demographic characteristics were gender and age, with women, young workers and older workers far more likely to be engaged in part-time work, stating that these workers were far more likely than any other groups to not receive the benefit of the highest category bonus or not to not be paid bonuses at all. The Commission found that the proposed bonuses did not amount to indirect discrimination as the negative impact was essentially the same for each member of the class and therefore could not be seen to discriminate. The Commission was therefore satisfied that the impugned term was not an unlawful term.

Fourthly, RAFFWU stated that Woolworths misrepresented the benefit of the Agreement in relation to laundering allowances, sign on payments and gift cards. RAFFWU contended that Woolworths, in material encouraging workers to vote for the Agreement, made representations that it would pay a ‘laundering allowance’ to employees other than bakery employees; and that it made representations to employees of gift cards as a benefit of the Agreement, with a value up to $1100, however the Agreement did not contain any gift card benefit. RAFFWU argued that each of these misrepresentations were likely to have misled employees in relation to the Agreement. The Commission found that the representations made by Woolworths did not expressly state that either the laundry allowance or the gift card were a term of the proposed agreement. Rather, they were expressed as benefits of the agreement. The Commission noted that ultimately, if the Agreement was approved eligible employees will have received, or will shortly thereafter receive the full benefit of the combined gift card and the remainder of any eligible sign-on sum which is a term of the Agreement. The Commission in such circumstances was not persuaded that there were reasonable grounds demonstrating that employees did not genuinely agree to the Agreement.

RAFFWU further contended the Agreement did not pass the better of overall test, as the Agreement contained a clause detrimental to casual employees. The clause was said to be in the form of a restriction on the frequency with which a casual employee may apply for conversion to full-time or part-time employment. The Commission found that the Agreement contained a range of terms more favourable that relate to causal employees compared to the General Retail Industry Award 2010. The Commission accepted that these benefits will not apply in every case to every causal employee, however the Commission considered that each award covered casual employee and each prospective award covered casual employee would, as at the test time, be better off overall that if the Award applied.

After the consideration and acceptance of undertakings proffered by Woolworths, the Commission was satisfied that the requirements of the Fair Work Act were met. The agreement was approved with undertakings.

Background

This matter relates to an application by the Metropolitan Fire and Emergency Services Board (MFB) for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016. The United Firefighters’ Union of Australia (UFU) was a bargaining representative for the Agreement and supported the approval of the Agreement.

Outcome

The Commission concluded that it was unable to approve the Agreement because it was not satisfied that particular terms of the Agreement did not contravene s.55 of the Fair Work Act. Section 55 contains the interaction rules between the National Employment Standards (NES) and a modern award or enterprise agreement, and relevantly provides that an enterprise agreement must not exclude the NES or any provision of the NES.

Clause 44.3.1 of the Agreement provided that an employee must provide appropriate evidence of their entitlement under the Fair Work Act in the form of a statutory declaration, copies of which would be provided to the UFU and MFB. The Commission found that clause 44.3.1 contravened s.55. The Commission proffered that this concern might be resolved by the provision of appropriate undertakings. The Commission also concluded that it should apply the construction of ‘discriminates’ adopted by Tracey J in National Retail Association (No 2) to the word as it appears in s.195. Section 195 is only concerned with terms that directly discriminate against an employee covered by the agreement because of, or for reasons that include, the particular characteristics or attributes identified therein. The Commission found that the Agreement did not include terms that are directly discriminatory. The Commission also found that the Agreement did not include any objectionable terms, and concluded that the requirement in s.186(4) has been met. The Commission was satisfied that the Agreement passed the BOOT, the requirement in s.186(2)(d) was met.

Except for the s.55 matter identified, the Commission concluded the other approval requirements contained in ss.186 and 187 were met. The Commission directed the MFB to file in the Commission and serve on the UFU any written undertakings that it wished to give to meet the concern that the Agreement contains terms that contravene s.55 of the Fair Work Act within 21 days of the date of the decision. Before filing any undertakings, the MFB was directed to consult with the UFU in its capacity as bargaining representative for the Agreement about the undertakings.

Note: The undertakings proposed by the MFB met the Commission’s concerns. The undertakings did not cause any financial detriment to any employee covered by the Agreement nor did they result in any substantial change to the Agreement. The UFU advised that it supported the undertakings. The Commission accepted the undertakings. The date of the approval was 18 February 2019.

Application by Minister for Jobs and Industrial Relations and Minister for Women

Background

This application was made by the Hon. Kelly O'Dwyer MP, the Minister for Jobs and Industrial Relations and Minister for Women (the Minister) seeking the referral of a question of law to the Federal Court pursuant to s.608 of the Fair Work Act. The question sought to be referred was ‘On its proper construction, does the term “discriminates” in s 195 of the FW Act include indirect discrimination?’ The Minister’s reasons for the referral application included that the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 was indirectly discriminatory to women and people with family or carer’s responsibilities.

Outcome

The Commission noted that events had moved on after the 15 January 2019 decision [[2019] FWC 106] was issued, and that the provisions which had been seen to be indirectly discriminatory had been extensively modified in their effect as a result of the undertakings accepted by the Commission in the 18 February 2019 decision [[2019] FWCA 1023]. As such the Commission did not consider that granting the referral application would be an efficient procedural course. The Commission noted that there would be an extensive delay involved in having a Full Court of the Federal Court consider and determine the proposed question, in circumstances where the answer to the question may turn out not to be determinative of the Minister’s review applications. The Minister’s referral application was dismissed. The review applications will be listed for hearing before a Full Bench of the Commission.

Background

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (the Amending Act) was passed in December 2018. The Amending Act amends s.188 of the Fair Work Act to enable the Commission to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that those errors were not likely to have disadvantaged employees, with effect from 12 December 2018. The Amending Act provides a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s.186(2)(a), despite ‘minor procedural or technical errors’.

Staff of the Commission undertook a review of s.185 applications for approval of enterprise agreements that were before the Commission and identified a number of examples of apparent failures to satisfy s.188(1), to which s.188(2) may apply. These matters reflect procedural or technical issues that are commonly identified in relation to s.185 applications.

To provide some early clarity around the operation of the new s.188(2), the President referred these matters to this Full Bench for hearing (the Matters). On 11 December 2018 the Full Bench published a Statement [[2018] FWCFB 7528] which set out the relevant terms of the Amending Act and some of the extrinsic material and grouped the Matters according to the issues they raised.

Outcome

The Full Bench held that the following propositions emerge from the consideration of the proper construction of s.188(2):

Subsections 188(1) and (2) are to be approached sequentially. The first question is whether the Commission is satisfied as to the matters at s.188(1)(a) to (c), if it is so satisfied then the agreement has been ‘genuinely agreed’ to and there is no need to consider s.188(2).

The reference to the ‘employees covered by the agreement’ in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.

Subsections 188(1) and (2) both provide that an enterprise agreement has been genuinely agreed if the Commission is satisfied as to certain matters (ie those in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment.

Section 188(2) is confined to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of ‘errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’.

Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise from a consideration of s.188(1)(c).

Section 188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The ‘minor procedural or technical errors’ referred to in s.188(2)(a) must be errors ‘made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’.

The Full Bench also considered the meaning of the terms ‘minor procedural or technical errors’:

The adjective ‘minor’ qualifies both ‘procedural’ errors and ‘technical’ errors, such that the expression reads ‘minor procedural errors or minor technical errors’. The word ‘minor’ is a limitation upon the type of errors contemplated by s.188(2)(a).

A failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s.188(2)(a). A procedural requirement is one which requires an employer to follow a particular process or course of action eg. providing employees with a notice of employee representational rights (NERR) as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least seven clear days between notifying employees of the voting process and the commencement of that process (s.180(3)).

A failure to comply with a technical requirement will constitute a ‘technical error’ within the meaning of s.188(2)(b). A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.

A single error may have both procedural and technical components.

The impact of the errors is to be assessed by reference to the objects of the requirements in ss.188(2)(a), 188(1)(b), 173 or 174.

What constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. Table 2 at paragraph [74] of this decision examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the seven day access period (say six days before the start of the voting process) is likely to be a ‘minor error’ in most cases, but it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some four days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with. For example, the need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the ‘voting method’ (s.180(3)(b)). The first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.

Some species of error are unlikely to be classified as ‘minor’, for example the deletion of the prescribed text of the NERR which deals with an employee’s right to appoint a bargaining representative and the role of the unions as the default bargaining representatives, but, again, it may depend on the circumstances (see paragraphs [77]–[78]).

The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174’. The impact of the errors is to be assessed by reference to the objects of those requirements, and not by reference to any more general sense of ‘genuine agreement’.

Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.

The test posited by s.188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’.

The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Fair Work Act.

In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.

Spotless BHPB WA Sites Enterprise Agreement 2018

Background

This matter relates to an application by Spotless Facility Services P/L for approval of the Spotless BHPB WA Sites Enterprise Agreement 2018. The notice of employee representational rights (NERR) contained content in the coverage field that differed from the Agreement. The applicant submitted that in May 2017, when bargaining was initiated, all employees covered by the Agreement at that time were issued the NERR. The applicant also noted that in June 2017 a further 15 new employees were employed as a result of a new contract won by the applicant, these new employees did not receive a copy of the NERR. The applicant submitted that the agreement would have been genuinely agreed to but for this ‘minor procedural error’ in not reissuing the NERR to the new employees.

Outcome

The Commission considered the application of s.188 as amended in the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth). The Commission considered whether the changes to the NERR and the extension of the coverage of the Agreement could fall within the Commission’s discretion under s.188 to approve an agreement regardless of minor procedural and technical errors, where employees were not likely to have been disadvantaged by those errors.

The Commission found that the application could not satisfy s.188(2)(a) as the difference between the NERR and the coverage of the Agreement could not be described as a ‘minor procedural or technical error’, as it brought within the scope of the Agreement classifications and groups of employees not contemplated in the NERR. Given the significant changes to the coverage of the Agreement as compared to the NERR, the Commission found that the Agreement was incapable of approval. The application was dismissed.

Background

The decision at first instance dealt with the late lodgment of the application to approve the Sodexo Remote Sites (Offshore Operations) Enterprise Agreement 2018. The application was made three days late and the application for an extension of time was refused by the Commission, who said there were ‘a raft of issues about this application, a raft of issues, and I’m minded not to extend time because I do not consider it would be fair to extend that period’. Sodexo appealed the decision on a number of grounds including natural justice.

Outcome

The Full Bench found that if the Commission had exercised its discretion under s.185(3)(b) of Fair Work Act to grant the three day extension of time, Sodexo would have had the opportunity to address the ‘raft of issues’ in support of such extension.

The Full Bench was not satisfied that the denial of natural justice could have made no difference to the outcome of the question. The Full Bench considered R v Thames Magistrates’ Court, Ex Parte Polemis and City of Stirling v Mr Kevin Emery. A denial of natural justice is a jurisdictional error. The Full Bench was satisfied it was in the public interest to grant permission to appeal. The appeal was upheld and the decision and order were quashed. The application under s.185(3)(b) for an extension of time was remitted to Boyce DP for determination.

Background

The West Gate Tunnel Project is a major Victorian infrastructure project being undertaken in partnership between the Victorian Government and one of the world’s largest toll-road operators, Transurban. CPB Contractors Pty Ltd and John Holland Pty Ltd (collectively ‘Joint Venture Partners’) were announced as the preferred tenderer in April 2017 and confirmed as the winning bidder in December 2017.

Since being announced as preferred tenderer and thereafter being confirmed as the winning bidder, the Joint Venture Partners sought to negotiate and make greenfields agreements to cover the works for which they were engaged to perform. Whilst the proposed greenfields agreements were being negotiated, the Joint Venture Partners and several of their subcontractors undertook design work, geological testing, service relocations and other works.

On 9 November 2018 the Joint Venture Partners applied to the Commission for the approval of the West Gate Tunnel Project (Tunnelling) Greenfields Agreement 2018 and the West Gate Tunnel Project (Civil Surface Works) Greenfields Agreement 2018 (collectively ‘the Agreements’). The unions involved opposed the approval of the Agreements.

Outcome

After consideration the Commission found that by 9 November 2018 the delivery of the package of works that the Joint Venture Partners had been contracted to design and construct had well and truly commenced, in both a design and construction sense.

The Commission found that the actual activity undertaken by the Joint Venture Partners was undertaken for the purpose delivering the package of works they were contracted to deliver, and for commercial reward. The enterprise was established.

The Commission concluded that as at 9 November 2018, the Joint Venture Partners were not establishing or proposing to establish a genuine new enterprise to which the Agreements related. The applications were dismissed.

Disputes & industrial action matters

Dispute resolution matters

Background

The decision at first instance in this matter involved the dismissal of an application under s.739 of the Fair Work Act, and the disputes procedure in clause 43 of the UPA, NSWNMA and HSU NSW Enterprise Agreement 2014-2017. The application was dismissed under s.587(1)(c) of the Fair Work Act as the application was substantially similar to an earlier unsuccessful application made by the applicant in 2014, and therefore had no reasonable prospect of success.

The previous application had been made under clause 42 of the predecessor agreement. The 2014 decision [[2014] FWC 5634] determined that the disputes procedure in clause 42 of predecessor agreement was valid and the Commission could not arbitrate on questions of workload unless both parties agreed. An appeal of the 2014 decision was refused [[2014] FWCFB 7533].

At first instance the Commission held that the only difference between the current application and the one made in 2014 was that the 2014 application was made under the predecessor agreement.

The appellant’s appeal grounds included accusations of ‘deliberate’ errors of fact and law, and allegations that the Commissioner acted with ‘actual bias, prejudice and hatred’, had a conflict of interest and ‘acted corruptly’.

Outcome

The Full Bench found that there was no basis or merit in the appellant’s claims. The Full Bench also found no error in the Commission’s conclusion at first instance, and no consideration that would support granting permission to appeal.

The Full Bench noted that s.674(2) of the Fair Work Act creates an offence if a person uses insulting language towards a Member, and suggested that if the appellant’s statement about the Commissioner acting corruptly was made directly to him it could have been referred to the Australian Federal Police for investigation. Permission to appeal was refused.

Anti-bullying matters

Background

At first instance the Commission dismissed the appellant’s application for an order to stop bullying. An anti-bullying application can only be made by a ‘worker’, defined in s.789FC of the Fair Work Act as having the same meaning as s.7 of the Work Health and Safety Act 2011 (Cth) (the WHS Act).

The Commission found that the appellant did not satisfy the definition and held there was no jurisdiction to determine the application. The Commission held that the relationship between the appellant and the respondent was not ‘work’ of a paid or unpaid type such as would be done by a volunteer, it was done as part of a program, funded by Government, to improve the well-being and mental health of its participants.

The appellant contended that the Commission erred in its conclusion, submitting he undertook work ‘in any capacity for’ the respondent consistent with the WHS Act definition.

Outcome

The Full Bench considered Balthazaar and found the Commission’s conclusion at first instance constituted appealable error. The Full Bench held that the appellant satisfied the definition of ‘worker’ and was thus competent to make an application under s.789FC. Permission to appeal was granted and the appeal was upheld. The matter was remitted to Spencer C for determination.

Registered organisations matters

Mr Nigel Davies

Background

This matter relates to an application to revoke or suspend an entry permit. Mr Nigel Davies is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 5 March 2014 Mr Davies was issued a right of entry permit under s.512 of the Fair Work Act. In August 2018, the Federal Court imposed penalties on Mr Davies in respect of contraventions of the right of entry provisions in the Fair Work Act. The question for determination in the present matter is whether the Commission must suspend or revoke Mr Davies’ entry permit under s.510(1) as a consequence of the imposition of those penalties, or whether the Commission is not required to do so because the exception in s.510(2) applies, namely that it would be harsh or unreasonable to suspend or revoke Mr Davies’ permit in the circumstances.

This matter centres on events that took place in Bendigo on two days in 2014. On 22 July 2014, a health and safety representative at the construction site for the Bendigo Theatre project requested Mr Davies’ assistance in relation to concerns he held about the safety of certain scaffolding. Mr Davies entered the site and met with the health and safety representative. He did not provide notice of his entry to the occupier. When asked by the project manager, Mr Simon Ireland, to show his entry permit, Mr Davies refused to do so. The project manager told Mr Davies that he could stay on site if he showed his permit. Mr Davies still did not show his permit and the project manager directed him to leave. The police were called. When they arrived, Mr Davies showed them his entry permit and left the site. On 29 July 2014, Mr Davies again entered the site in response to a request for assistance from the same health and safety representative. He did not produce his permit and did not follow a direction from the occupier to leave the site.

Mr Davies said that his understanding at the time was that, because he was entering the site pursuant to ss.58 and 70 of the Occupational Health and Safety Act 2004 (Vic), he was not exercising entry rights under the Fair Work Act, and was therefore not required to show his federal entry permit. He says that this was also the view of his union and the Victorian WorkCover Authority. On 3 November 2016, in proceedings unrelated to Mr Davies, the Federal Court upheld this interpretation of the Fair Work Act in Australian Building and Construction Commissioner v Powell (Powell No 1). However, on 2 June 2017 the decision was overturned in Australian Building and Construction Commissioner v Powell (Powell No 2).

Mr Davies and the union submitted that the following matters, taken together, pointed to a conclusion that the suspension or revocation of his permit would be harsh or unreasonable in the circumstances:

his contravening conduct proceeded on a view of the law that was mistaken but reasonably held

his conduct occurred at a time when he had been an official of the union for only some months

he has undertaken training and now understands the correct legal position

his conduct since the incidents in July 2014 has been unblemished, and

suspension or revocation of his permit would adversely affect his ability to represent the union’s members.

The ABCC contended that it would not be harsh or unreasonable to suspend Mr Davies’ permit. It submitted that Mr Davies’ contraventions of the Fair Work Act were numerous and serious, and that he has not expressed any remorse for his conduct or provided assurances that he will comply with his entry obligations in the future. It said that the evidence did not establish any substantial inconvenience would accrue to Mr Davies or the union if his permit were to be suspended. It contended that there was an insufficient evidentiary basis for the Commission to conclude that it would be harsh or unreasonable to suspend Mr Davies’ permit, and that having regard to all the circumstances, his permit should be suspended for a period of six months.

Outcome

The Commission found that a peculiar and significant consideration in this case was that Mr Davies said that his conduct was premised on a misapprehension of the law. He submitted that he believed that he was not required to show his permit in the circumstances of his visits to the Bendigo site on 22 and 29 July 2014. This is consistent with his evidence to the Court in the proceedings that resulted in the Liability Decision. Mr Davies admitted to the Court that he did not show his permit, and when asked why he did not do so, said that he had been asked to come to the site by a health and safety representative. He also said that he had ‘been asked to come onto the site for a safety concern, and [his] objective was to deal with that.’ In the Penalty Decision, Justice Tracey stated that, although Mr Davies said that he believed he was not required to produce his federal permit in the circumstances, no basis for that belief had been established and that he did not find this explanation persuasive.

Based on the evidence before it, the Commission concluded that Mr Davies did not believe that he was legally required to show his entry permit to the occupier of the site in connection with his entries to the Bendigo theatre premises on 22 and 29 July 2014. His understanding of the legal position was reasonable, and only later revealed by a decision of the Full Federal Court to be wrong. His was not a case of a wilful or reckless contravention of the Fair Work Act. His attitude on site was confrontational, and he should not have used bad language, or placed his telephone close to the project manager’s face. But he was responding to a request for assistance from a health and safety representative about a genuine safety issue and believed that he was not exercising entry rights under the Fair Work Act, and therefore did not need to show his permit.

Having regard to all of the circumstances, the Commission was satisfied that the suspension or revocation of Mr Davies’ entry permit would be unreasonable. This is sufficient to engage s.510(2), with the consequence that the Commission was not required to revoke or to suspend Mr Davies’ entry permit under s.510(1).

Procedural matters

Background

At first instance the Commission refused an application for an extension of time to lodge a general protections dismissal dispute. The original application was lodged three days after the 21 day statutory time period. The Commission found no exceptional circumstances to warrant granting an extension of time.

The grounds of appeal contested that the Commission’s conclusion that the reasons for delay, including representative error, weighed against extending the time of lodgment. The appellant further contended that the Commission did not take into account a medical condition that impacts his cognitive ability.

Outcome

The Full Bench found that the Commission did not take into account the appellant’s cognitive impairment or the important issues of representative error. Not taking into account these factors disclosed a significant error of fact in the Commission’s decision. The Full Bench found that permission to appeal and the appeal should be granted.

The matter was re-determined by the Full Bench. The reasons for the delay included that the appellant contacted Unfair Dismissals Direct believing it was the Commission. The Unfair Dismissals Direct representative advised the appellant and left him under the impression that interaction with Unfair Dismissals Direct would result in a claim against the respondent being made within the required time. The Full Bench found that the actions of Unfair Dismissal Direct were reckless and put the appellant in a position of potential prejudice. The Full Bench was satisfied that inaction on behalf of Unfair Dismissals Direct led to the three day delay. The Full Bench found that the reasons weighed in favour of an extension of time being granted. Permission to appeal was granted, with the decision and order at first instance quashed. The time for the lodgment of the appellant’s general protections application was extended.

Other matters

Members of the Commission regularly encounter parties who report having sought and sourced information about the Fair Work Act and its operation but are unsure whether it was from the Fair Work Commission or the Fair Work Ombudsman. Invariably, they advise they have been in contact with ‘Fair Work’. Their confusion arising from the similar names tends to blur in their minds from whom they have received particular advice and the distinct roles played by the Commission and the Ombudsman.

This confusion is only exacerbated when private providers such as Unfair Dismissals Direct appear to be seeking to harvest work by utilising the term ‘Fair Work’ on websites and the like. Unfair Dismissals Direct, for example, has employed the email address ‘fairwork@dismissalsdirect’. By way of another example, there is an organisation in Western Australia trading as ‘Fair Work Legal Advice’. To the extent that such practices cause confusion or have the potential to cause confusion, the Full Bench expressed its concern. Such practices are, in its view, to be avoided.

Award modernisation – 4 yearly review

Finalisation of the 4 yearly review

On 28 February 2019, the President of the Commission issued a Statement in which he provided an overview of three procedural Statements that have been published relating to the scheduling and process for finalising the Review during 2019. It is anticipated that the Review will be completed at the end of October 2019, and modern awards will be varied in line with finalised exposure drafts at that time.

Award stage and Exposure Drafts

A Statement issued by the President of the Commission on 13 February 2019 set out a timeline for the finalisation of exposure drafts for 2019. The timeline also provided the dates on which interested parties were required to file any submissions relating to each group of exposure drafts (see Attachment A to the Statement).

Substantive claims in modern awards

On 6 February 2019 the President issued a Statement finalising the timetable outlining when specific matters may be timetabled throughout 2019. The timetable will be updated when directions are issued or varied, and when hearing dates are listed. A copy of the timetable is on the dedicated Timetable page of the 4 yearly review section of the Commission’s website.

Plain Language Project

A Statement was issued on 28 February 2019, providing an update about the current status of the matters before the plain language Full Bench, the next steps in the plain language project, including the awards that have been identified for plain language re-drafting during 2019. Consideration will be given to the further re-drafting of awards in plain language in 2020 due to the time constraints of the 4 yearly review.

The Statement provides information regarding a process called the ‘plain language light touch’. Each exposure draft will go through this process, and the timeline attached to this Statement notes that the relevant updates to the exposure drafts will occur during May 2019. The Full Bench provided provisional views on several matters which will make up the process. Submissions are requested.

Fast Food Industry Award 2010 – substantive claims

This decision deals with two variations to the Fast Food Industry Award 2010 (the Fast Food Award) sought by the Australian Industry Group (Ai Group) as part of the 4 yearly review of modern awards.

Ai Group’s first claim related to the proposed insertion of a facilitative provision in the Fast Food Award to allow employers and a majority of employees to agree to vary the end time of the evening penalty rate from 6.00am to 5.00am. The Shop, Distributive and Allied Employees Association (SDA) and the Retail and Fast Food Workers Union (RAFFWU) opposed the variation. The Full Bench considered that ss.134(1)(a),(b), (da) and (g) of the modern awards objective, in addition to some general observations made about the fairness of the proposed facilitative provision, weighed against making the proposed variation. The Full Bench ultimately rejected this claim.

Ai Group’s second claim related to a proposal to replace the part-time employment provision in the Fast Food Award with a ‘flexible’ part-time clause which would, inter alia, introduce part-time employees with a guaranteed eight hours of work per week. The claim also sought to insert a new Rosters clause and to vary the existing overtime clause. The proposed clauses represent a departure from the current Fast Food Award as they do not ensure part-time employees with regular pattern of work and they remove the requirement for all time worked in excess of a part-time employee’s weekly hours to be paid at overtime rates. The claim was supported by the SDA and was opposed by the RAFFWU. After considering both the modern awards objective and some general observations about the merit and fairness of the proposed provisions, the Full Bench rejected this claim. The Full Bench held, however, there was merit in the provision of guaranteed minimum hours of work for part-time employees and in the simplification of the requirements attaching to the alteration of their agreed regular pattern of work. These issues are to be considered further by Masson DP in conference.

Annualised Wage Arrangements

Background

In February 2018 the Full Bench issued a decision [[2018] FWCFB 154] (the 2018 decision) concerning the issue of annualised wage arrangements. The Full Bench expressed eight conclusions concerning what is necessary for annualised wage arrangement provisions in modern awards and set out four variant model clauses they provisionally considered could give effect to their conclusions. Interested parties were provided an opportunity to file submissions and submissions in reply responding to the provisional views expressed in the 2018 decision.

Outcome

Interested parties took diverse positions on issues to be resolved and it was necessary for the Full Bench to resolve the outstanding issues identified in the 2018 decision.

The Full Bench determined that model clause 1, as set out in paragraph [130] of the 2018 decision, will become the standard annualised wage arrangements provision for awards already containing an annualised wage arrangement provision and under which employees generally work stable hours. Model clause 3, set out in paragraph [132] of the 2018 decision, will become a standard annualised wage arrangements provision for awards already contain an annualised wage arrangement provision and under which employees work highly variable hours or significant ordinary hours which attract penalty rates under the award. These model clauses will be subject to specified modifications for specific awards.

The Full Bench provided a list of awards to be included under each model clause (see paragraphs [53] and [56]). The Full Bench concluded that there may be a need for a transitional provision to apply to existing annualised wage arrangements upon the identified modern awards being varied to include new standard provisions. Parties were invited to make submissions on this issue and on the validity of the lists provided. Parties were also asked to comment on whether or not the Health Professionals and Support Services Award 2010 should be varied to include a version of model clause 3 applicable only to managerial or supervisory employees.

Background

Clubs Australia - Industrial (CAI) made an application for the Registered and Licensed Clubs Award 2010 (Clubs Award), to be revoked, and for the Hospitality Industry (General) Award 2010 (Hospitality Award) to be varied to expand its coverage to encompass that of the Clubs Award under ss.156 and 164 of the Fair Work Act.

The genesis of CAI’s application was in an earlier application made by CAI as part of the 4 yearly review of modern awards for a reduction in weekend and public holiday penalty rates in the Clubs Award. This application, together with other applications seeking reductions to weekend and public holiday penalty rates in other awards, was determined in the Penalty Rates Decision on 23 February 2017. The Full Bench rejected CAI’s claim but expressed a provisional view that it could make determinations revoking the Clubs Award and varying the coverage of the Hospitality Award so that it covered the class of employers and employees presently covered by the Clubs Award.

Outcome

The Full Bench dismissed CAI’s application. The Full Bench found that the Hospitality Award would not be varied so that it covers the clubs industry and there was no basis for the statutory preconditions in s.164 for the revocation of the Clubs Award to be satisfied. Although CAI’s application had the nominal objective of abolishing the Clubs Award and subsuming coverage of the clubs industry into the Hospitality Award, the Full Bench found that there could be no doubt that the real objective of the application was to obtain a reduction in weekend and public holiday penalty rates for permanent employees in the clubs industry.

The Full Bench could not identify any particular benefit that would arise from revoking the Clubs Award and expanding the coverage of the Hospitality Award. They did not consider that CAI’s proposed variations to the Hospitality Award to subsume the coverage of the Clubs Award was necessary to or would achieve the modern awards objective. They found it would inflict economic harm on clubs employees without any identifiable countervailing benefit to clubs, their employees, the hospitality sector or the public interest.

Resources & initiatives

Making compliant agreement applications – new guide published

The Fair Work Commission has published a guide to help employers and employees lodge compliant applications for enterprise agreements, including how to avoid common problems that delay the approval process.

The guide gives a detailed description of more than 20 frequently encountered errors in agreement applications and identifies steps to avoid them as well as providing an update on the agreement approval process.

Workplace Advice Service

In August 2018 the Commission launched the Workplace Advice Service (WAS) to provide access to free legal assistance to eligible persons including small business employers seeking employment law advice.

The Commission launched the WAS as free legal advice can improve access to justice, reduce complexity and confusion, and avoid unnecessary costs.

In Victoria, New South Wales, Queensland, Western Australia and South Australia the Commission partners with a range of law firms, community legal centres and legal aid commissions to provide this assistance.

An individual is eligible if:

they do not have a lawyer, and

they are not a union member.

Small business employers are eligible if:

the small business is not a member of an employer association, and

the small business does not have in-house legal, workplace relations or human resources staff.

The assistance can be accessed at three key stages:

Assistance level 1—Pre-lodgment or pre-conciliation advice to provide early assistance in unfair dismissal, general protections and anti-bullying matters.

Assistance level 3—Representation in proceedings that may be of public interest.

In addition to the WAS the Commission operates a pilot program with Justice Connect to provide free legal advice to people who are considering or have lodged a general protections application in the ACT and NSW.

General update

Amended statutory declaration forms published

The Fair Work Commission has today published a number of amended forms.

The amendments reflect the requirements of the new Statutory Declarations Regulations 2018, which change the prescribed form for statutory declarations. All statutory declarations made from Monday, 18 March 2019 must be in the new prescribed form to be valid.

Quarterly statistical reports published

The Fair Work Commission’s quarterly statistical reports for the 2nd quarter of 2018–19 have now been published.

The reports can be accessed from the Quarterly reports page on our website. They cover the period from 1 October 2018 to 31 December 2018.

An Information note (PDF) is also available, which provides details about the sources of the data contained in the reports.

Subscriptions & feedback

You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Commission work and activities on the Commission’s website.

If you have any feedback about this newsletter, including suggestions for future editions, please contact engagement@fwc.gov.au.

Updated time

Last updated

20 June 2019

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